The Corporation, New Governance, and the Power of the Publicization Narrative

The Corporation, New Governance, and the Power of the Publicization Narrative takes a critical look at the idea of publicization and how it plays out within new governance. Publicization is a vague, but powerful, notion that the delegation of public power to for-profit agents-what John Braithwaite calls the \u27privatization of the public - will lead to such agents exercising this power as idealized public servants-what Braithwaite calls the publicization of the private. This article argues that publicization of the private is a dangerous metaphor, which offers a romanticized picture of functionally efficient, decentered actors acting with the integrity of public servants. This article suggests that publicization of the private is an empty promise that will lead the faithful to be less critical of privatization. Accordingly, this article suggests that new governance initiatives may be leading to the privatization of the public without the publicization of the private

The Corporation, New Governance, and the Power of the Publicization Narrative

The Corporation, New Governance, and the Power of the Publicization Narrative takes a critical look at the idea of publicization and how it plays out within new governance. Publicization is a vague, but powerful, notion that the delegation of public power to for-profit agents-what John Braithwaite calls the \u27privatization of the public - will lead to such agents exercising this power as idealized public servants-what Braithwaite calls the publicization of the private. This article argues that publicization of the private is a dangerous metaphor, which offers a romanticized picture of functionally efficient, decentered actors acting with the integrity of public servants. This article suggests that publicization of the private is an empty promise that will lead the faithful to be less critical of privatization. Accordingly, this article suggests that new governance initiatives may be leading to the privatization of the public without the publicization of the private

Law, the American Corporation, and Society

This book explores how American legal scholarship treats the corporation by providing a history of American corporate legal theory, a history of corporate (social) responsibility from the perspective of the Berle–Dodd debate, an analysis of how legal scholars understand corporate lawmaking in America, and an initial inquiry into how the prevailing opinions about the corporation are realized in the context of a critical assessment of whether or not this resulting corporate governance holds the potential to compliment the efforts of new governance regulators. This book consists of four essays about American corporate governance. Three essays trace how three particular presumptions about the corporation came to become part of the dominant narrative about the corporation within the American academic context. The first presumption is that the American contractarian theory of the corporation most accurately frames an understanding of the corporation. This presumption underpins much of Delaware’s corporate law. Second is the notion that shareholder value maximization provides the necessary precondition for effective corporate governance. The modern incarnation of this presumption was inadvertently inspired by the early 20th Century work of Adolf A. Berle. Third is the idea that there is market competition for incorporations between states, and this competition creates a “race to the top.” Such presumptions help shape the dominant narrative about the American corporation. In the final chapter, the elements of these presumptions, and the narratives they weave, are reconsidered within the context of new governance, which encourages private actors, like corporations, to play larger roles within the administrative functions of governments. It is explained how new governance thought presumes that corporations are becoming more imbued with a sense of public spiritedness. This presumption is closely examined and then ultimately rejected as dangerously optimistic considering the narratives that dominate corporate legal thinking—at least in the American context. Each of the four chapters has been published in U.S. law reviews, creating a portfolio of essays regarding the American corporation and its place in society

Radical Hope: A Teaching Manifesto by Kevin M. Gannon

Kevin Gannon\u27s Radical Hope: A Teaching Manifesto (“Radical Hope”) is a call for all of us who teach in higher education to realize the full extent of our opportunity to improve the lives of others. He argues that by inspiring our students to develop their practice of learning, we not only help them to succeed in school, but throughout their lives

Berle’s Conception of Shareholder Primacy: A Forgotten Perspective For Reconsideration During the Rise of Finance

Today, Berle is celebrated as the grandfather of modern shareholder primacy, but this description glosses over his opposition to Manne’s flip of his argument. Berle’s objection is not always appreciated in commentaries of his shareholder primacy argument. For this reason, this Article offers a nuanced understanding of Berle’s argument, providing a clear observation point for examining the shift from his shareholder primacy argument to the one of today. This shift is a transition from promoting shareholder primacy in order to protect minority constituents to promoting shareholder primacy in order to protect majority rights and the right of exit for any disgruntled minority. It is also the shift from promoting shareholder primacy in order to tie corporate managers to public interest to promoting shareholder primacy in order to endorse minimizing transaction costs—even when efficacy gains unfortunately result in costs being externalized upon people who did not ex ante negotiate contract safeguards to protect themselves against such risk. From this point of observation, the shareholder primacy argument offers another perspective upon investor empowerment during the current “rise of finance.” Part II of this Article briefly reviews the history of Berle as a young man. It then introduces Berle’s theory of the corporation and how this theory plays out in his early endorsement of shareholder primacy from 1923 to 1926. Part III explores the development and content of The Modern Corporation and Private Property, with particular emphasis on the relationship between the book and the Berle–Dodd debate. Part IV provides a fresh analysis of the debate. Part V contextualizes Berle’s thoughts on shareholder primacy within the rise of finance as an organizing force not only for the firm, but also for the rest of society. Finally, Part VI offers a concluding thought

The Place of Corporate Lawmaking in American Society

This article provides a history of the legal debates over the corporate charters in the American context starting with a famous dispute, originating in a series of contesting law review articles in the 1970s. A brief literature review will recount the academic arguments that have provided the intellectual support for sustaining Delaware’s primacy over corporate law-making in the face of constant attack. By understanding the debates that have sustained Delaware’s ability to lead the American competition for incorporation, this article provides insight into what is regarded as the most important legal instrument for maintaining status quo for actual social relationships within the American corporation: the “market for incorporation”. However, the article will draw attention to the growing skepticism over Delaware’s ability to generate optimal corporate law. This skepticism is most clearly evident in the federal government’s growing willingness to design and to pursue corporate law policies in the face of corporate governance scandal, notwithstanding the fact that corporate law in the United States is “state law”. The consequences of these developments are at present subject to scrutiny and discussion. In sum, this article provides an example of how shifts in law-making networks outside of the firm holds the potential to shift the embeddedness of behavior of social relationships inside the firm

Indeterminacy and Balance: A Path to a Wholesome Corporate Law

This article argues that corporate legal scholarship needs to focus primarily upon the indeterminacy of essentialist theories about the corporation. This will result in greater pluralism, since no essentialist legal theory would become heavily privileged over any other. When such a balance is created between theories, a robust debate can occur where no ideas are raised to the status of being “undiscussable preferences” and no essentialist theory is off the table before the debate begins. This would lead to fewer consensuses but more complexity than presently exists within corporate legal discourse, helping to immunize the law from the sort of oversimplifications that might offer ease of comprehension at the risk of positive error

Review Article: Bainbridge’s The New Corporate Governance (in Context)

If corporate boards are becoming more than “rubber stamps”, then Stephen Bainbridge and his new book are in the middle of a coup d\u27état in corporate governance. On the other hand, if this shift is not occurring and boards remain “rubber stamps”, then director primacy is no more than managerialism with a twist. Moreover, if director primacy represents the emergence of a new order for American corporate governance, then the merits of maintaining Delaware’s status quo director primacy must be carefully assessed, because the stakes are changing - maybe for the better and maybe for the worse.This article traces what has been argued in the literature to date. Part II will briefly refresh the reader’s memory by presenting one narrative of how the American corporate governance debate emerged. Part III will provide a concise chapter-by-chapter roadmap for Bainbridge’s arguments in The New Corporate Governance. Part VI will take a closer look at what Bainbridge tacitly suggests is the genius of Delaware’s corporate law by mapping the debates which have raged over managerialism, state competition, and Delaware: America’s regulatory laboratory for de facto “national” corporate law. This will provide a snapshot of the context from which The New Corporate Governance has emerged. Part V will conclude the review article by offering some reflections on what place the book holds within today’s American corporate governance debate

Berle’s Conception of Shareholder Primacy: A Forgotten Perspective for Reconsideration During the Rise of Finance

Adolf A. Berle is celebrated as the grandfather of modern shareholder primacy, but this glosses over his opposition to how Henry Manne used his argument. If Berle were alive today, he would certainly reject this praise. This is not always appreciated in commentaries of his shareholder primacy argument. For this reason, this article offers a nuanced understanding of Berle’s argument, providing a clear observation point for examining the shift from his shareholder primacy argument to the one of today. From this point of observation, the reader can see distinctions within, and potentials for, the shareholder primacy argument and thus the variety of ways that investor empowerment can develop during the current “rise of finance.

Law, the American Corporation, and Society

This book explores how American legal scholarship treats the corporation by providing a history of American corporate legal theory, a history of corporate (social) responsibility from the perspective of the Berle–Dodd debate, an analysis of how legal scholars understand corporate lawmaking in America, and an initial inquiry into how the prevailing opinions about the corporation are realized in the context of a critical assessment of whether or not this resulting corporate governance holds the potential to compliment the efforts of new governance regulators. This book consists of four essays about American corporate governance. Three essays trace how three particular presumptions about the corporation came to become part of the dominant narrative about the corporation within the American academic context. The first presumption is that the American contractarian theory of the corporation most accurately frames an understanding of the corporation. This presumption underpins much of Delaware’s corporate law. Second is the notion that shareholder value maximization provides the necessary precondition for effective corporate governance. The modern incarnation of this presumption was inadvertently inspired by the early 20th Century work of Adolf A. Berle. Third is the idea that there is market competition for incorporations between states, and this competition creates a “race to the top.” Such presumptions help shape the dominant narrative about the American corporation. In the final chapter, the elements of these presumptions, and the narratives they weave, are reconsidered within the context of new governance, which encourages private actors, like corporations, to play larger roles within the administrative functions of governments. It is explained how new governance thought presumes that corporations are becoming more imbued with a sense of public spiritedness. This presumption is closely examined and then ultimately rejected as dangerously optimistic considering the narratives that dominate corporate legal thinking—at least in the American context. Each of the four chapters has been published in U.S. law reviews, creating a portfolio of essays regarding the American corporation and its place in society